13:0697(112)NG - AFGE Local 3028 and HHS, Public Health Service, Alaska Area Native Health Service -- 1984 FLRAdec NG



[ v13 p697 ]
13:0697(112)NG
The decision of the Authority follows:


 13 FLRA No. 112
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3028
 Union
 
 and
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, PUBLIC
 HEALTH SERVICE, ALASKA
 AREA NATIVE HEALTH SERVICE
 Agency
 
                                            Case No. O-NG-586
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  The issue presented
 is the negotiability of four Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                            Preliminary Matters
 
    The Union claims that the Agency's statement of position was untimely
 filed and requests that the Authority not consider the matters raised
 therein.  Contrary to the Union's claim, the Agency timely filed its
 statement of position under section 2424.6 and 2429.22 of the
 Authority's Rules and Regulations.  Hence, the Union's request must be
 denied.
 
    The Agency, for its part, moves that the Authority dismiss the
 Union's petition for review, claiming that the petitioner, the national
 office of the Union, is not the exclusive representative which is a
 party to the negotiations and therefore is without status to file the
 instant petition under section 2424.2 of the Authority's Rules and
 Regulations.  The Agency's contention is without merit.  Neither the
 Rules and Regulations nor the Statute precludes the local union from
 designating a representative to file an appeal on its behalf.  On the
 contrary, that is a matter within the purview of the Union, just as the
 designation of the Agency's representative before the Authority is a
 matter within the purview of the Agency.  Therefore, the Agency's motion
 to dismiss the Union's petition on this ground is denied.
 
    The Agency further moves for dismissal of Proposal 1 and 4 claiming
 that they are not properly before the Authority because the parties
 agreed to alternative language, which became Section 9(b) of Article 14
 of their agreement.  Although the Union does not dispute that the
 parties have agreed to the language cited by the Agency, it claims
 without specific contradiction by the Agency that Proposals 1 and 4 are
 properly before the Authority for review because the parties also agreed
 to a "reopener" which would become applicable if the Authority finds
 these proposals to be negotiable.  /1/ In this connection, the record is
 that the parties' agreement (Section 13 of Article 14) provides that the
 contract will be reopened for negotiations on those issues declared
 nonnegotiable by the Agency which the Authority, upon review, finds
 negotiable.  /2/ Finally, the Agency does not contradict the Union's
 statement that it filed this petition as permitted by section 2424.3 of
 the Authority's Rules and Regulations after the Agency did not respond
 to the Union's written request for an allegation of nonnegotiability.
 
    In agreement with the Union, the Authority finds that the Agency, by
 its failure to respond to the Union's request for an allegation,
 constructively declared Proposals 1 and 4 to be nonnegotiable thereby
 giving rise to a right of appeal to the Authority by the Union.
 Furthermore, even though the parties reached agreement on alternative
 language in Section 9(b), such language does not render Proposals 1 and
 4 herein moot in view of the "reopener" provision to which the parties
 also agreed.  Accordingly, the Agency's motion to dismiss the Union's
 petition as to Proposals 1 and 4 is denied.
 
                             Union Proposal 1
 
          Section 4.  Appraisal Rating
 
          A. Employees' performance rating will be a result of
       application of standards of performance to the employee's
       performance on critical and non-critical elements of the
       employees' position.  The employee will be rated only on these
       elements.
 
    Union Proposal 1 simply requires the Agency to give notice to
 employees as to which elements of their jobs will be subject to
 performance rating by the Agency and, of those elements, which ones the
 Agency deems to be "critical /3/ or "noncritical." The proposal itself,
 however, does not identify any particular job elements;  establish any
 performance standards for any job elements;  or require that any
 elements of any job be deemed to be "noncritical."
 
    The Agency is required by 5 U.S.C. 4302 and implementing regulations
 to develop a performance appraisal system which provides for
 establishment of performance standards and identification of critical
 elements and further to communicate the standards and critical elements
 to employees and to establish methods and procedures to appraise
 performance against established standards.  In essence then the
 proposal's effect is to require that the Agency comply with law.  Since
 it does not interfere with the Agency's discretion to identify job
 elements, to designate them either as "critical" or "noncritical" or to
 establish performance standards for employees' positions, the proposal
 is not inconsistent with management's rights to assign work and direct
 employees under section 7106(a)(2) of the Statute.  See National
 Treasury Employees Union and Department of the Treasury, Bureau of the
 Public Debt, 3 FLRA 769(1980), affirmed sub nom.  National Treasury
 Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C.
 Cir. 1982);  National Treasury Employees Union and U.S. Nuclear
 Regulatory Commission, 13 FLRA No. 49(1983).  Thus, since it is not
 apparent that the proposal is otherwise inconsistent with Federal law or
 Government-wide rule or regulation, it is within the duty to bargain.
 /4/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on Union Proposal 1.  /5/
 
                             UNION PROPOSAL 2
 
          The rating of elements will include designation of one of three
       ratings applied to each element identified on the rating form.
       Upon completion of the appraisal of each element, an overall
       rating of total performance will be designated using one of four
       ratings.
 
          (1) Rating of individual elements.  The range of ratings for
       each individual element shall be:
 
          (a) Exceeds the standard
 
          (b) Meets the standard
 
          (c) Fails to meet the standard
 
          Ratings other than "meet the standard" must be documented in
       writing and placed in the employee's personnel file.
 
                             Union Proposal 3
 
          (2) Overall Rating
 
          The range of rating for overall performance shall be one of the
       four ratings defined below.  The overall rating shall be arrived
       at by considering the total performance of the employee by using
       only the rating of the elements as prescribed in Section 4B(1)
       above.
 
          The ratings are:
 
          (a) Outstanding
 
          (b) Satisfactory
 
          (c) Marginal
 
          (d) Unacceptable
 
          A rating other than (b) satisfactory shall be documented in
       writing and made part of the employee's personnel file.  Each
       employee will be given a copy of the rating and any written
       documentation. Union Proposals 2 and 3 would establish the number
       of
 
 rating levels for the appraisal of an employee's performance in each job
 element and for a summary appraisal of overall performance.  In these
 respects, Union Proposals 2 and 3 are to the same effect as the proposal
 before the Authority in American Federation of State, County and
 Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice,
 13 FLRA No. 96(1984), which was determined to be inconsistent with
 management's rights to direct employees and to assign work under section
 7106(a)(2)(A) and (B) of the Statute.  Thus, for the reasons set forth
 in U.S. Department of Justice, Proposals 2 and 3 are inconsistent with
 section 7106(a)(2)(A) and (B) of the Statute and outside the duty to
 bargain.  /6/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review as to
 Union Proposals 2 and 3 be, and it hereby is, dismissed.
 
                             Union Proposal 4
 
          C. Employees will be rated annually.  The rating will be
       complete within five (5) working days of the anniversary date.
 
    In American Federation of Government Employees, AFL-CIO, Local 1968
 and Department of Transportation, Saint Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA No. 14 (1981), affirmed as to
 other matters sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir.
 1982), the Authority determined that a proposal to the extent it
 prescribed periodic appraisal of employees on an annual basis was
 consistent with law and Government-wide rules or regulations and,
 therefore, was within the duty to bargain (Proposal 2).  See also
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 No. 34(1981) (Proposal 3).  Therefore, for the reasons set forth in
 Saint Lawrence Seaway Development Corporation, the first sentence of the
 proposal requiring annual performance appraisals is within the duty to
 bargain.
 
    The second sentence of the proposal requires the Agency to prepare an
 employee's performance appraisal within five working days of the annual
 anniversary date.  Thus, this portion of the proposal similarly would
 establish a procedural time limit for the appraisal of an employee's
 performance.  Since there is nothing in the record to indicate that this
 portion of the proposal which establishes such a time limit to complete
 the annual performance appraisal is inconsistent with law or regulation,
 it is within the duty to bargain under section 7106(b)(2) of the
 Statute.  /7/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on Union Proposal 4.  /8/
 
    Issued, Washington, D.C., January 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Union Reply Brief at 1-2.
 
 
    /2/ The Agency does, however, make conflicting statements in the
 record as to whether it has declared Proposals 1 and 4 to be
 nonnegotiable so as to come within the purview of Section 13.
 
 
    /3/ See 5 CFR 430.202(e).
 
 
    /4/ See American Federation of Government Employees, AFL-CIO, Local
 3804 and Federal Deposit Insurance Corporation, Chicago Region,
 Illinois, 7 FLRA No. 34(1981), in which the Authority determined that
 Proposal 3 was negotiable to the extent it required that the annual
 performance appraisal result from the application of performance
 standards to each element of an employee's job, including critical
 elements.
 
 
    /5/ In deciding that Union Proposal 1 is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /6/ Since the Authority determines that Union Proposals 2 and 3 are
 outside the duty to bargain under section 7106(a)(2), it is unnecessary
 to consider other Agency contentions as to the nonnegotiability of the
 proposals.
 
 
    /7/ See American Federation of Government Employees, AFL-CIO, Local
 32 and Office of Personnel Management, Washington, D.C., 8 FLRA No.
 97(1982) (Union Proposal V);  National Federation of Federal Employees,
 Local 1497 and Headquarters, Lowry Technical Training Center (AT